 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Structural Steel Fabricators11/20/1995
SONENSHINE, Acting P.J.:
This is the second appeal arising out of litigation between Structural Steel Fabricators, Inc. (Structural) and the City of Orange. In the first, Structural Steel Fabricators, Inc. v. City of Orange (1991) 234 Cal. App. 3d 1206, 286 Cal. Rptr. 24, we reversed a summary judgment in favor of the city on its Civil Code section 3210 statute of limitations defense to Structural's action to enforce a stop notice. We found there was a triable issue of fact whether Structural could rely on an estoppel theory to extend the time for filing its action. In a footnote, we declined "to reach Structural's alternative argument that the doctrine of equitable tolling is applicable." ( Structural Steel Fabricators, Inc. v. City of Orange, supra, 234 Cal. App. 3d at p. 1212, fn. 10.) However, we noted such a position might have merit. (Ibid.) We remanded the case for further proceedings.
Following trial of the action, the court ruled Structural failed to prove estoppel, but found the action timely by virtue of equitable tolling of the statute of limitations while Structural pursued its claim against the general contractor and the bonding company. The city's appeal squarely presents the issue we had no need to decide in our prior decision. We affirm and publish our opinion in light of the dearth of law on the subject.
Factual and Procedural Background
We recite a portion of the background as set forth in our prior published opinion.
"In February 1988, Structural, as subcontractor, entered into a contract with IDC Construction (IDC), as general contractor, to perform structural steel fabrication for the City of Orange. In October, IDC walked off the job site, and Contractor Surety Bonding Company (CSBC) assumed its role. Structural received partial payment from CSBC; however, CSBC left before Structural was paid in full.
"On January 4, 1989, Structural served a stop notice upon the city, demanding that it withhold the sum of $30,086 from CSBC. Instead, the city permitted CSBC to 'bond around' the stop notice.
"On May 26, Structural filed a lawsuit against IDC and CSBC. In September, Structural obtained a $27,350 default judgment. A month earlier, however, IDC filed a chapter 7 bankruptcy proceeding and CSBC went out of business.
"Meanwhile, on June 21, 1989, while its lawsuit against IDC and CSBC was pending, Structural made a demand upon the city, claiming the sum of $24,894 was due. A corrected demand was served on June 27, indicating the proper amount was $30,086.
"On November 6, Structural filed a separate lawsuit against the city to enforce the stop notice. In its first amended complaint filed in June 1990, Structural alleged the city 'has either paid the money due Plaintiff to the unlicensed bonding company or still retains the money.' It admitted the statute of limitations to enforce the stop notice had expired on July 4, 1989; however, it claimed that the city's conduct had tolled the statute." ( Structural Steel Fabricators, Inc. v. City of Orange, supra, 234 Cal. App. 3d at pp. 1208-1209, fns. omitted.)
Following this court's reversal of the city's summary judgment, the case was tried on its merits. The court found in favor of Structural based on the theory the statute of limitations was subject to equitable tolling while Structural, "in good faith, pursued a claim first against the general contractor and the bonding company."
We need not concern ourselves with dates. All parties agree if tolling occurred, the action was timely;
Page 1 2 3 4 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|